All We Need Is To KISS To Achieve Equality For LGBT Students


As the Morrison Government continues to tie itself in knots over LGBTQI discrimination in schools, Jonathon Hunyor from the Public Interest Advocacy Centre has an easy solution – Keep It Simple Stupid.

Recently, the Senate Legal and Constitutional Affairs Committee handed down the latest report into the issue of discrimination against LGBT students by religious schools.

It follows on from a similar Senate inquiry late last year into discrimination against LGBT students and teachers by religious schools, which was itself established in the wake of the October 2018 leak of the recommendations of the Ruddock review of religious freedom, commissioned by then-Prime Minister Turnbull at the end of the 2017.

And what did this latest Committee recommend? Another inquiry.

Just like the Government’s response to the Ruddock review, the Committee recommended (with Labor and the Greens in dissent) that the issue of exceptions to allow religious schools to discriminate against LGBT students and teachers, be referred to the Australian Law Reform Commission for yet another review.

Enough. Enough committees, and inquiries, and reviews, which have only served to delay what is absolutely essential law reform.

The problem is clear. Under Commonwealth law, religious schools are allowed to discriminate against LGBT students and teachers (expel them, sack them, exclude them) simply because of who they are, who they love or how they identify.

Contrary to the protestations of religious organisations, these special privileges are being used in Australia today.

The Ruddock review heard evidence of staff being sacked ‘on the basis of their sexuality, despite the staff not openly discussing those issues in the school’. The review also heard of students ‘forced to leave’ religious schools that were ‘not supportive of them coming out’ and ‘LGBTI youth who felt bullied and unsupported at religious schools, particularly where schools adopted a stance that was less accepting of homosexual relationships generally.’

Every day reform is stalled is another day that LGBT students and teachers live with the real prospect of discrimination at religious schools. And live with the knowledge that the law allows this.

Those who oppose change are keen to make the issue complicated.

There is no doubt that there are competing rights at play here – the right to manifest religious belief, the right to live free of discrimination, the right to privacy, the right of children to an education that allows them to develop to their fullest potential.

But the answer need not be complicated. Indeed, the solution – if we want to find one – is clear and simple. And we don’t need to look far to see where it has worked.

Tasmania banned discrimination by religious schools on the basis of sexual orientation and gender identity in 1998. Queensland stopped religious schools discriminating against LGBT students in 2002. The ACT has also recently passed amendments that prohibit discrimination against both LGBT students and teachers by religious schools.

If you hadn’t noticed, that might tell you something. The sky has not fallen in. Religious schools continue to operate in all three jurisdictions, and are able to teach their ethos and values to their students. The only thing that has changed is that students and teachers no longer turn up to school fearful that today is the day they will be expelled, singled out, excluded or sacked.

We can make this happen in our Commonwealth laws by passing the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that was introduced by Labor. This takes the first step to protect LGBT students from discrimination in religious schools. Beyond technical amendments, it requires no changes and can happen as soon as Parliament can consider it.

The Government’s raft of proposed amendments to the Bill must be resisted. They seek to undermine the changes and protect the ability of religious schools to disadvantage LGBT students. Equivalent amendments have not been necessary in Tasmania, Queensland and the ACT.

The next step is to ensure teachers and other staff are also protected from discrimination. This will require changes to two pieces of Commonwealth legislation – the Sex Discrimination Act 1984, and the Fair Work Act 2009. Given the limited time that this Parliament has left to run, it seems unlikely that these changes can be made before the election. But they should be a priority for the new Parliament.

For now, what we need is not another inquiry. It’s action. Action that will ensure all schools are safe and welcoming environments for LGBT students. Places where all children can thrive.

Jonathon Hunyor is the CEO of the Public Interest Advocacy Centre. He has practised for over 20 years as a lawyer in NSW and the Northern Territory in areas including criminal law, discrimination and human rights, refugee law and Aboriginal land rights.